{"id":57,"date":"2014-09-17T00:42:06","date_gmt":"2014-09-17T00:42:06","guid":{"rendered":"https:\/\/courses.candelalearning.com\/buslegalenv\/?post_type=chapter&p=57"},"modified":"2015-04-21T21:34:18","modified_gmt":"2015-04-21T21:34:18","slug":"5-6-cases","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/chapter\/5-6-cases\/","title":{"raw":"Cases","rendered":"Cases"},"content":{"raw":"

Marshall v. Barlow\u2019s, Inc<\/em>.<\/h2>\r\n
\r\n
\r\n\r\nMarshall v. Barlow\u2019s, Inc.\r\n\r\n436 U.S. 307 (U.S. Supreme Court 1978)\r\n\r\nMR. JUSTICE WHITE delivered the opinion of the Court.\r\n\r\nSection 8(a) of the Occupational Safety and Health Act of 1970 (OSHA or Act) empowers agents of the Secretary of Labor (Secretary) to search the work area of any employment facility within the Act\u2019s jurisdiction. The purpose of the search is to inspect for safety hazards and violations of OSHA regulations. No search warrant or other process is expressly required under the Act.\r\n\r\nOn the morning of September 11, 1975, an OSHA inspector entered the customer service area of Barlow\u2019s, Inc., an electrical and plumbing installation business located in Pocatello, Idaho. The president and general manager, Ferrol G. \u201cBill\u201d Barlow, was on hand; and the OSHA inspector, after showing his credentials, informed Mr. Barlow that he wished to conduct a search of the working areas of the business. Mr. Barlow inquired whether any complaint had been received about his company. The inspector answered no, but that Barlow\u2019s, Inc., had simply turned up in the agency\u2019s selection process. The inspector again asked to enter the nonpublic area of the business; Mr. Barlow\u2019s response was to inquire whether the inspector had a search warrant.\r\n\r\nThe inspector had none. Thereupon, Mr. Barlow refused the inspector admission to the employee area of his business. He said he was relying on his rights as guaranteed by the Fourth Amendment of the United States Constitution.\r\n\r\nThree months later, the Secretary petitioned the United States District Court for the District of Idaho to issue an order compelling Mr. Barlow to admit the inspector. The requested order was issued on December 30, 1975, and was presented to Mr. Barlow on January 5, 1976. Mr. Barlow again refused admission, and he sought his own injunctive relief against the warrantless searches assertedly permitted by OSHA.\u2026The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of that Amendment, and the American colonial experience.\r\n\r\nAn important forerunner of the first 10 Amendments to the United States Constitution, the Virginia Bill of Rights, specifically opposed \u201cgeneral warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed.\u201d The general warrant was a recurring point of contention in the Colonies immediately preceding the Revolution. The particular offensiveness it engendered was acutely felt by the merchants and businessmen whose premises and products were inspected for compliance with the several parliamentary revenue measures that most irritated the colonists.\u2026\r\n\r\n* * *\r\n\r\nThis Court has already held that warrantless searches are generally unreasonable, and that this rule applies to commercial premises as well as homes. In Camara v. Municipal Court<\/em>, we held:\r\n
[E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is \u2018unreasonable\u2019 unless it has been authorized by a valid search warrant.<\/blockquote>\r\nOn the same day, we also ruled: As we explained in Camara<\/em>, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant. These same cases also held that the Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations. The reason is found in the \u201cbasic purpose of this Amendment\u2026[which] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.\u201d If the government intrudes on a person\u2019s property, the privacy interest suffers whether the government\u2019s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.\u2026\r\n\r\n[A]n exception from the search warrant requirement has been recognized for \u201cpervasively regulated business[es],\u201d United States v. Biswell<\/em>, 406 U.S. 311, 316 (1972), and for \u201cclosely regulated\u201d industries \u201clong subject to close supervision and inspection,\u201d Colonnade Catering Corp. v. United States<\/em>, 397 U.S. 72, 74, 77 (1970). These cases are indeed exceptions, but they represent responses to relatively unique circumstances. Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise. Liquor (Colonnade<\/em>) and firearms (Biswell<\/em>) are industries of this type when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.\r\n\r\n* * *\r\n\r\nThe clear import of our cases is that the closely regulated industry of the type involved in Colonnade<\/em> and Biswell<\/em> is the exception. The Secretary would make it the rule. Invoking the Walsh-Healey Act of 1936, 41 U.S.C. \u00a7 35 et seq.<\/em>, the Secretary attempts to support a conclusion that all businesses involved in interstate commerce have long been subjected to close supervision of employee safety and health conditions. But\u2026it is quite unconvincing to argue that the imposition of minimum wages and maximum hours on employers who contracted with the Government under the Walsh-Healey Act prepared the entirety of American interstate commerce for regulation of working conditions to the minutest detail. Nor can any but the most fictional sense of voluntary consent to later searches be found in the single fact that one conducts a business affecting interstate commerce. Under current practice and law, few businesses can be conducted without having some effect on interstate commerce.\r\n\r\n* * *\r\n\r\nThe critical fact in this case is that entry over Mr. Barlow\u2019s objection is being sought by a Government agent. Employees are not being prohibited from reporting OSHA violations. What they observe in their daily functions is undoubtedly beyond the employer\u2019s reasonable expectation of privacy. The Government inspector, however, is not an employee. Without a warrant he stands in no better position than a member of the public. What is observable by the public is observable, without a warrant, by the Government inspector as well. The owner of a business has not, by the necessary utilization of employees in his operation, thrown open the areas where employees alone are permitted to the warrantless scrutiny of Government agents. That an employee is free to report, and the Government is free to use, any evidence of noncompliance with OSHA that the employee observes furnishes no justification for federal agents to enter a place of business from which the public is restricted and to conduct their own warrantless search.\r\n\r\n* * *\r\n\r\n[The District Court judgment is affirmed.]\r\n
\r\n

Case Questions<\/h3>\r\n
\r\n
    \r\n\t
  1. State, as briefly and clearly as possible, the argument that Barlow\u2019s is making in this case.<\/li>\r\n\t
  2. Why would some industries or businesses be \u201cclosely regulated\u201d? What are some of those businesses?<\/li>\r\n\t
  3. The Fourth Amendment speaks of \u201cpeople\u201d being secure in their \u201cpersons, houses, papers, and effects.\u201d Why would the Fourth Amendment apply to a business, which is not in a \u201chouse\u201d?<\/li>\r\n\t
  4. If the Fourth Amendment does not distinguish between closely regulated industries and those that are not, why does the court do so?<\/li>\r\n<\/ol>\r\n<\/section><\/div>\r\n<\/div>\r\n
    \r\n

    American Textile Manufacturers Institute v. Donovan<\/em><\/h2>\r\nAmerican Textile Manufacturers Institute v. Donovan\r\n\r\n452 U.S. 490 (1981)\r\n\r\nJUSTICE BRENNAN delivered the opinion of the Court.\r\n\r\nCongress enacted the Occupational Safety and Health Act of 1970 (Act) \u201cto assure so far as possible every working man and woman in the Nation safe and healthful working conditions.\u2026\u201cThe Act authorizes the Secretary of Labor to establish, after notice and opportunity to comment, mandatory nationwide standards governing health and safety in the workplace. In 1978, the Secretary, acting through the Occupational Safety and Health Administration (OSHA), promulgated a standard limiting occupational exposure to cotton dust, an airborne particle byproduct of the preparation and manufacture of cotton products, exposure to which produces a \u201cconstellation of respiratory effects\u201d known as \u201cbyssinosis.\u201d This disease was one of the expressly recognized health hazards that led to passage of the Act.\r\n\r\nPetitioners in these consolidated cases representing the interests of the cotton industry, challenged the validity of the \u201cCotton Dust Standard\u201d in the Court of Appeals for the District of Columbia Circuit pursuant to \u00a7 6 (f) of the Act, 29 U.S.C. \u00a7 655 (f). They contend in this Court, as they did below, that the Act requires OSHA to demonstrate that its Standard reflects a reasonable relationship between the costs and benefits associated with the Standard. Respondents, the Secretary of Labor and two labor organizations, counter that Congress balanced the costs and benefits in the Act itself, and that the Act should therefore be construed not to require OSHA to do so. They interpret the Act as mandating that OSHA enact the most protective standard possible to eliminate a significant risk of material health impairment, subject to the constraints of economic and technological feasibility.\r\n\r\nThe Court of Appeals held that the Act did not require OSHA to compare costs and benefits.\r\n\r\nWe granted certiorari, 449 U.S. 817 (1980), to resolve this important question, which was presented but not decided in last Term\u2019s Industrial Union Dept. v. American Petroleum Institute<\/em>, 448 U.S. 607 (1980), and to decide other issues related to the Cotton Dust Standard.\r\n\r\n* * *\r\n\r\nNot until the early 1960\u2019s was byssinosis recognized in the United States as a distinct occupational hazard associated with cotton mills. In 1966, the American Conference of Governmental Industrial Hygienists (ACGIH), a private organization, recommended that exposure to total cotton dust be limited to a \u201cthreshold limit value\u201d of 1,000 micrograms per cubic meter of air (1,000 g\/m3<\/sup>.) averaged over an 8-hour workday. See 43 Fed. Reg. 27351, col. 1 (1978). The United States Government first regulated exposure to cotton dust in 1968, when the Secretary of Labor, pursuant to the Walsh-Healey Act, 41 U.S.C. 35 (e), promulgated airborne contaminant threshold limit values, applicable to public contractors, that included the 1,000 g\/m3<\/sup> limit for total cotton dust. 34 Fed. Reg. 7953 (1969). Following passage of the Act in 1970, the 1,000 g\/m3<\/sup>. standard was adopted as an \u201cestablished Federal standard\u201d under 6 (a) of the Act, 84 Stat. 1593, 29 U.S.C. 655 (a), a provision designed to guarantee immediate protection of workers for the period between enactment of the statute and promulgation of permanent standards.\r\n\r\nThat same year, the Director of the National Institute for Occupational Safety and Health (NIOSH), pursuant to the Act, 29 U.S.C. \u00a7\u00a7 669(a)(3), 671 (d)(2), submitted to the Secretary of Labor a recommendation for a cotton dust standard with a permissible exposure limit (PEL) that \u201cshould be set at the lowest level feasible, but in no case at an environmental concentration as high as 0.2 mg lint-free cotton dust\/cu m,\u201d or 200 g\/m3<\/sup>. of lint-free respirable dust. Several months later, OSHA published an Advance Notice of Proposed Rulemaking, 39 Fed.Reg. 44769 (1974), requesting comments from interested parties on the NIOSH recommendation and other related matters. Soon thereafter, the Textile Worker\u2019s Union of America, joined by the North Carolina Public Interest Research Group, petitioned the Secretary, urging a more stringent PEL of 100 g\/m3<\/sup>.\r\n\r\nOn December 28, 1976, OSHA published a proposal to replace the existing federal standard on cotton dust with a new permanent standard, pursuant to \u00a7 6(b)(5) of the Act, 29 U.S.C. \u00a7 655(b)(5). 41 Fed.Reg. 56498. The proposed standard contained a PEL of 200 g\/m3<\/sup> of vertical elutriated lint-free respirable cotton dust for all segments of the cotton industry. Ibid.<\/em> It also suggested an implementation strategy for achieving the PEL that relied on respirators for the short term and engineering controls for the long-term. OSHA invited interested parties to submit written comments within a 90-day period.\r\n\r\n* * *\r\n\r\nThe starting point of our analysis is the language of the statute itself. Section 6(b)(5) of the Act, 29 U.S.C. \u00a7 655(b)(5) (emphasis added), provides:\r\n
    The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible<\/strong>, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Although their interpretations differ, all parties agree that the phrase \u201cto the extent feasible\u201d contains the critical language in \u00a7 6(b)(5) for purposes of these cases.<\/blockquote>\r\nThe plain meaning of the word \u201cfeasible\u201d supports respondents\u2019 interpretation of the statute. According to Webster\u2019s Third New International Dictionary of the English Language 831 (1976), \u201cfeasible\u201d means \u201ccapable of being done, executed, or effected.\u201d In accord, the Oxford English Dictionary 116 (1933) (\u201cCapable of being done, accomplished or carried out\u201d); Funk & Wagnalls New \u201cStandard\u201d Dictionary of the English Language 903 (1957) (\u201cThat may be done, performed or effected\u201d). Thus, \u00a7 6(b)(5) directs the Secretary to issue the standard that \u201cmost adequately assures\u2026that no employee will suffer material impairment of health,\u201d limited only by the extent to which this is \u201ccapable of being done.\u201d In effect then, as the Court of Appeals held, Congress itself defined the basic relationship between costs and benefits, by placing the \u201cbenefit\u201d of worker health above all other considerations save those making attainment of this \u201cbenefit\u201d unachievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in \u00a7 6(b)(5). Thus, cost-benefit analysis by OSHA is not required by the statute because feasibility analysis is.\r\n\r\nWhen Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute. One early example is the Flood Control Act of 1936, 33 U.S.C. \u00a7 701:\r\n
    [T]he Federal Government should improve or participate in the improvement of navigable waters or their tributaries, including watersheds thereof, for flood control purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs<\/strong>, and if the lives and social security of people are otherwise adversely affected. (emphasis added)<\/blockquote>\r\nA more recent example is the Outer Continental Shelf Lands Act Amendments of 1978, providing that offshore drilling operations shall use the best available and safest technologies which the Secretary determines to be economically feasible<\/em>, wherever failure of equipment would have a significant effect on safety, health, or the environment, except where the Secretary determines that the incremental benefits are clearly insufficient to justify the incremental costs of using such technologies<\/em>.\r\n\r\nThese and other statutes demonstrate that Congress uses specific language when intending that an agency engage in cost-benefit analysis. Certainly in light of its ordinary meaning, the word \u201cfeasible\u201d cannot be construed to articulate such congressional intent. We therefore reject the argument that Congress required cost-benefit analysis in \u00a7 6(b)(5).\r\n
    \r\n

    Case Questions<\/h3>\r\n
    \r\n
      \r\n\t
    1. What is byssinosis? Why should byssinosis be anything that the textile companies are responsible for, ethically or legally? If it is well-known that textile workers get cotton dust in their systems and develop brown lung, don\u2019t they nevertheless choose to work there and assume the risk of all injuries?<\/li>\r\n\t
    2. By imposing costs on the textile industry, what will be the net effect on US textile manufacturing jobs?<\/li>\r\n\t
    3. How is byssinosis a \u201cnegative externality\u201d that is not paid for by either the manufacturer or the consumer of textile products? How should the market, to be fair and efficient, adjust for these negative externalities other<\/em> than by setting a reasonable standard that shares the burden between manufacturers and their employees? Should all<\/em> the burden be on the manufacturer?<\/li>\r\n<\/ol>\r\n<\/section><\/div>\r\n
      <\/div>\r\n<\/div>\r\n<\/div>","rendered":"

      Marshall v. Barlow\u2019s, Inc<\/em>.<\/h2>\n
      \n
      \n

      Marshall v. Barlow\u2019s, Inc.<\/p>\n

      436 U.S. 307 (U.S. Supreme Court 1978)<\/p>\n

      MR. JUSTICE WHITE delivered the opinion of the Court.<\/p>\n

      Section 8(a) of the Occupational Safety and Health Act of 1970 (OSHA or Act) empowers agents of the Secretary of Labor (Secretary) to search the work area of any employment facility within the Act\u2019s jurisdiction. The purpose of the search is to inspect for safety hazards and violations of OSHA regulations. No search warrant or other process is expressly required under the Act.<\/p>\n

      On the morning of September 11, 1975, an OSHA inspector entered the customer service area of Barlow\u2019s, Inc., an electrical and plumbing installation business located in Pocatello, Idaho. The president and general manager, Ferrol G. \u201cBill\u201d Barlow, was on hand; and the OSHA inspector, after showing his credentials, informed Mr. Barlow that he wished to conduct a search of the working areas of the business. Mr. Barlow inquired whether any complaint had been received about his company. The inspector answered no, but that Barlow\u2019s, Inc., had simply turned up in the agency\u2019s selection process. The inspector again asked to enter the nonpublic area of the business; Mr. Barlow\u2019s response was to inquire whether the inspector had a search warrant.<\/p>\n

      The inspector had none. Thereupon, Mr. Barlow refused the inspector admission to the employee area of his business. He said he was relying on his rights as guaranteed by the Fourth Amendment of the United States Constitution.<\/p>\n

      Three months later, the Secretary petitioned the United States District Court for the District of Idaho to issue an order compelling Mr. Barlow to admit the inspector. The requested order was issued on December 30, 1975, and was presented to Mr. Barlow on January 5, 1976. Mr. Barlow again refused admission, and he sought his own injunctive relief against the warrantless searches assertedly permitted by OSHA.\u2026The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of that Amendment, and the American colonial experience.<\/p>\n

      An important forerunner of the first 10 Amendments to the United States Constitution, the Virginia Bill of Rights, specifically opposed \u201cgeneral warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed.\u201d The general warrant was a recurring point of contention in the Colonies immediately preceding the Revolution. The particular offensiveness it engendered was acutely felt by the merchants and businessmen whose premises and products were inspected for compliance with the several parliamentary revenue measures that most irritated the colonists.\u2026<\/p>\n

      * * *<\/p>\n

      This Court has already held that warrantless searches are generally unreasonable, and that this rule applies to commercial premises as well as homes. In Camara v. Municipal Court<\/em>, we held:<\/p>\n

      [E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is \u2018unreasonable\u2019 unless it has been authorized by a valid search warrant.<\/p><\/blockquote>\n

      On the same day, we also ruled: As we explained in Camara<\/em>, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant. These same cases also held that the Fourth Amendment prohibition against unreasonable searches protects against warrantless intrusions during civil as well as criminal investigations. The reason is found in the \u201cbasic purpose of this Amendment\u2026[which] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.\u201d If the government intrudes on a person\u2019s property, the privacy interest suffers whether the government\u2019s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.\u2026<\/p>\n

      [A]n exception from the search warrant requirement has been recognized for \u201cpervasively regulated business[es],\u201d United States v. Biswell<\/em>, 406 U.S. 311, 316 (1972), and for \u201cclosely regulated\u201d industries \u201clong subject to close supervision and inspection,\u201d Colonnade Catering Corp. v. United States<\/em>, 397 U.S. 72, 74, 77 (1970). These cases are indeed exceptions, but they represent responses to relatively unique circumstances. Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise. Liquor (Colonnade<\/em>) and firearms (Biswell<\/em>) are industries of this type when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.<\/p>\n

      * * *<\/p>\n

      The clear import of our cases is that the closely regulated industry of the type involved in Colonnade<\/em> and Biswell<\/em> is the exception. The Secretary would make it the rule. Invoking the Walsh-Healey Act of 1936, 41 U.S.C. \u00a7 35 et seq.<\/em>, the Secretary attempts to support a conclusion that all businesses involved in interstate commerce have long been subjected to close supervision of employee safety and health conditions. But\u2026it is quite unconvincing to argue that the imposition of minimum wages and maximum hours on employers who contracted with the Government under the Walsh-Healey Act prepared the entirety of American interstate commerce for regulation of working conditions to the minutest detail. Nor can any but the most fictional sense of voluntary consent to later searches be found in the single fact that one conducts a business affecting interstate commerce. Under current practice and law, few businesses can be conducted without having some effect on interstate commerce.<\/p>\n

      * * *<\/p>\n

      The critical fact in this case is that entry over Mr. Barlow\u2019s objection is being sought by a Government agent. Employees are not being prohibited from reporting OSHA violations. What they observe in their daily functions is undoubtedly beyond the employer\u2019s reasonable expectation of privacy. The Government inspector, however, is not an employee. Without a warrant he stands in no better position than a member of the public. What is observable by the public is observable, without a warrant, by the Government inspector as well. The owner of a business has not, by the necessary utilization of employees in his operation, thrown open the areas where employees alone are permitted to the warrantless scrutiny of Government agents. That an employee is free to report, and the Government is free to use, any evidence of noncompliance with OSHA that the employee observes furnishes no justification for federal agents to enter a place of business from which the public is restricted and to conduct their own warrantless search.<\/p>\n

      * * *<\/p>\n

      [The District Court judgment is affirmed.]<\/p>\n

      \n

      Case Questions<\/h3>\n
      \n
        \n
      1. State, as briefly and clearly as possible, the argument that Barlow\u2019s is making in this case.<\/li>\n
      2. Why would some industries or businesses be \u201cclosely regulated\u201d? What are some of those businesses?<\/li>\n
      3. The Fourth Amendment speaks of \u201cpeople\u201d being secure in their \u201cpersons, houses, papers, and effects.\u201d Why would the Fourth Amendment apply to a business, which is not in a \u201chouse\u201d?<\/li>\n
      4. If the Fourth Amendment does not distinguish between closely regulated industries and those that are not, why does the court do so?<\/li>\n<\/ol>\n<\/section>\n<\/div>\n<\/div>\n
        \n

        American Textile Manufacturers Institute v. Donovan<\/em><\/h2>\n

        American Textile Manufacturers Institute v. Donovan<\/p>\n

        452 U.S. 490 (1981)<\/p>\n

        JUSTICE BRENNAN delivered the opinion of the Court.<\/p>\n

        Congress enacted the Occupational Safety and Health Act of 1970 (Act) \u201cto assure so far as possible every working man and woman in the Nation safe and healthful working conditions.\u2026\u201cThe Act authorizes the Secretary of Labor to establish, after notice and opportunity to comment, mandatory nationwide standards governing health and safety in the workplace. In 1978, the Secretary, acting through the Occupational Safety and Health Administration (OSHA), promulgated a standard limiting occupational exposure to cotton dust, an airborne particle byproduct of the preparation and manufacture of cotton products, exposure to which produces a \u201cconstellation of respiratory effects\u201d known as \u201cbyssinosis.\u201d This disease was one of the expressly recognized health hazards that led to passage of the Act.<\/p>\n

        Petitioners in these consolidated cases representing the interests of the cotton industry, challenged the validity of the \u201cCotton Dust Standard\u201d in the Court of Appeals for the District of Columbia Circuit pursuant to \u00a7 6 (f) of the Act, 29 U.S.C. \u00a7 655 (f). They contend in this Court, as they did below, that the Act requires OSHA to demonstrate that its Standard reflects a reasonable relationship between the costs and benefits associated with the Standard. Respondents, the Secretary of Labor and two labor organizations, counter that Congress balanced the costs and benefits in the Act itself, and that the Act should therefore be construed not to require OSHA to do so. They interpret the Act as mandating that OSHA enact the most protective standard possible to eliminate a significant risk of material health impairment, subject to the constraints of economic and technological feasibility.<\/p>\n

        The Court of Appeals held that the Act did not require OSHA to compare costs and benefits.<\/p>\n

        We granted certiorari, 449 U.S. 817 (1980), to resolve this important question, which was presented but not decided in last Term\u2019s Industrial Union Dept. v. American Petroleum Institute<\/em>, 448 U.S. 607 (1980), and to decide other issues related to the Cotton Dust Standard.<\/p>\n

        * * *<\/p>\n

        Not until the early 1960\u2019s was byssinosis recognized in the United States as a distinct occupational hazard associated with cotton mills. In 1966, the American Conference of Governmental Industrial Hygienists (ACGIH), a private organization, recommended that exposure to total cotton dust be limited to a \u201cthreshold limit value\u201d of 1,000 micrograms per cubic meter of air (1,000 g\/m3<\/sup>.) averaged over an 8-hour workday. See 43 Fed. Reg. 27351, col. 1 (1978). The United States Government first regulated exposure to cotton dust in 1968, when the Secretary of Labor, pursuant to the Walsh-Healey Act, 41 U.S.C. 35 (e), promulgated airborne contaminant threshold limit values, applicable to public contractors, that included the 1,000 g\/m3<\/sup> limit for total cotton dust. 34 Fed. Reg. 7953 (1969). Following passage of the Act in 1970, the 1,000 g\/m3<\/sup>. standard was adopted as an \u201cestablished Federal standard\u201d under 6 (a) of the Act, 84 Stat. 1593, 29 U.S.C. 655 (a), a provision designed to guarantee immediate protection of workers for the period between enactment of the statute and promulgation of permanent standards.<\/p>\n

        That same year, the Director of the National Institute for Occupational Safety and Health (NIOSH), pursuant to the Act, 29 U.S.C. \u00a7\u00a7 669(a)(3), 671 (d)(2), submitted to the Secretary of Labor a recommendation for a cotton dust standard with a permissible exposure limit (PEL) that \u201cshould be set at the lowest level feasible, but in no case at an environmental concentration as high as 0.2 mg lint-free cotton dust\/cu m,\u201d or 200 g\/m3<\/sup>. of lint-free respirable dust. Several months later, OSHA published an Advance Notice of Proposed Rulemaking, 39 Fed.Reg. 44769 (1974), requesting comments from interested parties on the NIOSH recommendation and other related matters. Soon thereafter, the Textile Worker\u2019s Union of America, joined by the North Carolina Public Interest Research Group, petitioned the Secretary, urging a more stringent PEL of 100 g\/m3<\/sup>.<\/p>\n

        On December 28, 1976, OSHA published a proposal to replace the existing federal standard on cotton dust with a new permanent standard, pursuant to \u00a7 6(b)(5) of the Act, 29 U.S.C. \u00a7 655(b)(5). 41 Fed.Reg. 56498. The proposed standard contained a PEL of 200 g\/m3<\/sup> of vertical elutriated lint-free respirable cotton dust for all segments of the cotton industry. Ibid.<\/em> It also suggested an implementation strategy for achieving the PEL that relied on respirators for the short term and engineering controls for the long-term. OSHA invited interested parties to submit written comments within a 90-day period.<\/p>\n

        * * *<\/p>\n

        The starting point of our analysis is the language of the statute itself. Section 6(b)(5) of the Act, 29 U.S.C. \u00a7 655(b)(5) (emphasis added), provides:<\/p>\n

        The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible<\/strong>, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Although their interpretations differ, all parties agree that the phrase \u201cto the extent feasible\u201d contains the critical language in \u00a7 6(b)(5) for purposes of these cases.<\/p><\/blockquote>\n

        The plain meaning of the word \u201cfeasible\u201d supports respondents\u2019 interpretation of the statute. According to Webster\u2019s Third New International Dictionary of the English Language 831 (1976), \u201cfeasible\u201d means \u201ccapable of being done, executed, or effected.\u201d In accord, the Oxford English Dictionary 116 (1933) (\u201cCapable of being done, accomplished or carried out\u201d); Funk & Wagnalls New \u201cStandard\u201d Dictionary of the English Language 903 (1957) (\u201cThat may be done, performed or effected\u201d). Thus, \u00a7 6(b)(5) directs the Secretary to issue the standard that \u201cmost adequately assures\u2026that no employee will suffer material impairment of health,\u201d limited only by the extent to which this is \u201ccapable of being done.\u201d In effect then, as the Court of Appeals held, Congress itself defined the basic relationship between costs and benefits, by placing the \u201cbenefit\u201d of worker health above all other considerations save those making attainment of this \u201cbenefit\u201d unachievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in \u00a7 6(b)(5). Thus, cost-benefit analysis by OSHA is not required by the statute because feasibility analysis is.<\/p>\n

        When Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute. One early example is the Flood Control Act of 1936, 33 U.S.C. \u00a7 701:<\/p>\n

        [T]he Federal Government should improve or participate in the improvement of navigable waters or their tributaries, including watersheds thereof, for flood control purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs<\/strong>, and if the lives and social security of people are otherwise adversely affected. (emphasis added)<\/p><\/blockquote>\n

        A more recent example is the Outer Continental Shelf Lands Act Amendments of 1978, providing that offshore drilling operations shall use the best available and safest technologies which the Secretary determines to be economically feasible<\/em>, wherever failure of equipment would have a significant effect on safety, health, or the environment, except where the Secretary determines that the incremental benefits are clearly insufficient to justify the incremental costs of using such technologies<\/em>.<\/p>\n

        These and other statutes demonstrate that Congress uses specific language when intending that an agency engage in cost-benefit analysis. Certainly in light of its ordinary meaning, the word \u201cfeasible\u201d cannot be construed to articulate such congressional intent. We therefore reject the argument that Congress required cost-benefit analysis in \u00a7 6(b)(5).<\/p>\n

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        Case Questions<\/h3>\n
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        1. What is byssinosis? Why should byssinosis be anything that the textile companies are responsible for, ethically or legally? If it is well-known that textile workers get cotton dust in their systems and develop brown lung, don\u2019t they nevertheless choose to work there and assume the risk of all injuries?<\/li>\n
        2. By imposing costs on the textile industry, what will be the net effect on US textile manufacturing jobs?<\/li>\n
        3. How is byssinosis a \u201cnegative externality\u201d that is not paid for by either the manufacturer or the consumer of textile products? How should the market, to be fair and efficient, adjust for these negative externalities other<\/em> than by setting a reasonable standard that shares the burden between manufacturers and their employees? Should all<\/em> the burden be on the manufacturer?<\/li>\n<\/ol>\n<\/section>\n<\/div>\n
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          Candela Citations<\/h3>\n\t\t\t\t\t
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